Citation Nr: 0513912
Decision Date: 05/20/05 Archive Date: 06/01/05
DOCKET NO. 03-03 197 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to compensation under the provisions of 38
U.S.C.A. § 1151 for Lyme disease as a result of treatment by
the Department of Veterans Affairs (VA).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. B. Joyner, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1978 to March
1981, from June 1986 to November 1986, and from December 1987
to July 1988. He also had inactive service in the U.S. Army
Reserves.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Hartford, Connecticut.
In April 2003, a videoconference hearing before the
undersigned Veterans Law Judge was held. A transcript of
that hearing is of record.
When the case was last before the Board in December 2003, it
was remanded for additional development.
FINDINGS OF FACT
1. Lyme disease is not the result of an event not reasonably
foreseeable, carelessness, negligence, lack of proper skill,
error in judgment, or similar instance of fault on the part
of VA in the furnishing of medical treatment to include the
diagnosis of spider bite in June 2000.
2. No additional disability resulted from VA treatment for
an insect bite in June 2000.
CONCLUSION OF LAW
The criteria for entitlement to benefits pursuant to 38
U.S.C.A. § 1151 for Lyme disease resulting from VA treatment
have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R.
§ 3.358 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002), and the regulations implementing the VCAA,
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326
(2004), are applicable to the present appeal.
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the veteran provide any
evidence in his possession that pertains to the claim.
The record reflects that through the statement of the case,
supplemental statement of the case, a letter dated in June
2002 from the RO, and a March 2004 letter from the Appeals
Management Center (AMC), the veteran has been informed of the
evidence and information necessary to substantiate his claim,
the information required of him to enable VA to obtain
evidence in support of his claim, the assistance that VA
would provide to obtain evidence and information in support
of his claim, and the evidence that he should submit if he
did not desire VA to obtain such evidence on his behalf.
Although VA did not specifically inform the veteran that he
should submit any pertinent evidence in his possession, it
did inform him of the evidence that would be pertinent and
that he should either submit such evidence or provide the RO
with the information necessary for the RO to obtain such
evidence. Therefore, the Board is satisfied that VA has
complied with the notification requirements of the VCAA and
the implementing regulations. See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
The record also reflects that all pertinent available service
medical records and all available post-service medical
evidence identified by the veteran have been obtained. In
addition, the veteran has been afforded an appropriate VA
examination. Neither the veteran nor his representative has
identified any outstanding evidence that could be obtained to
substantiate the claim. The Board is also unaware of any
such outstanding evidence. Therefore, the Board is also
satisfied that VA has complied with the duty to assist
provisions of the VCAA and the implementing regulations.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121.
In the case at hand, the Board notes that the veteran was
provided with a VCAA letter prior to the initial adjudication
of the claim. In addition, when indicated, the veteran was
provided additional information by the RO. In the Board's
opinion, any procedural errors on the RO's part were
insignificant and non-prejudicial to the veteran.
Accordingly, appellate review may proceed without prejudice
to the veteran. See Bernard v. Brown, 4 Vet. App. 384
(1993).
Factual Background
VA medical records from June 12, 2000, show that the veteran
was seen for complaints of a swollen and hot left leg, which
resulted from a bite a few nights earlier. The examiner
found no evidence of infection, lymphadenopathy or
lymphangitis. The examiner advised the veteran to apply warm
to hot applications for one half hour to one hour, four times
a day. The examiner advised the veteran to return for
further treatment if things changed, worsened, or did not
improve within a week. The bite was characterized as a
spider bite.
A June 28, 2000, medical record from Day Kimball Hospital
notes that the veteran was seen for an insect bite on the
left leg. The note states that there was a large area of
erythema around the bite. Blood tests were positive for Lyme
disease. The diagnosis was Lyme disease. Medication was
prescribed.
An August 18, 2000, VA outpatient note sates that the veteran
was five weeks status post treatment for Lyme disease. He
was seen for severe anterior thorax pain that was
respirophasic. He complained of fatigue, fever, chills,
headache, dizziness, nausea, vomiting, joint pain, weakness,
and tremors. The examiner noted that the veteran appeared
sick. An echocardiogram revealed a moderate-sized
pericardial effusion with evidence of some diastolic collapse
of the RV. The assessment included alcohol dependence,
pericardial effusion without hemodynamic instability of
unknown etiology, bilateral infiltrates in the upper left
lobes of the lung, hepatomegaly of unknown etiology, acute
hepatitis, substance abuse, and complications associated with
Lyme disease, PO Babesiosis, Ehrlichiosis.
An August 19, 2000, infectious disease consult notes that the
veteran had a
one-week history of not feeling well, with diffuse abdominal
pains and dry heaves, and episodes of constipation and
diarrhea. The assessment was meningitis, with significant
improvement of symptoms, Ehrlichiosis, rule out hepatitis
(viral vs. alcoholic), and C. Diff colitis. An addendum to
the report notes systemic febrile illness with marked
gastrointestinal symptoms, headache, pericarditis, hepatitis
and pulmonary infiltrate. The examiner further stated that
atypical pneumonia is a unifying diagnosis with multiple
possibilities. The examiner opined that the veteran could
have alcoholic liver disease. Because of the veteran's
exposure to the outdoors, the possibility of exotic infection
like Tularemia was raised. The examiner also stated that
Lyme, Ehrlichia and Babesia are not included in the
diagnosis. Blood tests and cultures were recommended.
A May 2003 progress note from the veteran's private
physician, C. Conrad, M.D., states that the veteran contends
that his present symptoms (fatigue, asthenia, Raynaud's, and
dermatitis) are all related to the Lyme disease, which he
contracted in June 2000. After reviewing the veteran's
records, Dr. Conrad stated, "it just seems likely that the
initial lesion was indeed a tick bite which was misdiagnosed
initially as a spider bite, and he subsequently developed all
the complications that may be associated with Lyme disease
and ehrlichiosis." Dr. Conrad further stated:
Whether there is a correlation between
his present symptoms and the initial Lyme
infection, it is very possible that the
carditis and what followed that is most
likely related to his Lyme infection.
Myocardial abnormalities occur in about
8% of patients within weeks of
infections. . . . I would judge at this
time that there seems to be a correlation
between this gentleman's Lyme disease and
his present symptoms."
According to an October 2004 VA examination report, the
veteran was diagnosed with Lyme disease on June 28, 200, at
Day Kimball Hospital. At that time the clinical
manifestations of the disease were purely a rash. He was
treated with Doxycycline by the Day Kimball Hospital
physician, which the examiner opined was adequate. There
have been no exacerbations of the veteran's illness. The
examiner stated that the veteran has had what would amount to
a very slow recovery. At the time of the exam, the veteran
had dyspnea, fatigue on exertion, and Raynaud's phenomenon,
which was quite reliably reproduced on exposure to cold.
Physical examination was remarkable for persistent
tachycardia at the rate of 112. The examiner opined that
there were no signs and symptoms of acute illness in the
veteran, nor were there signs of chronic progressive illness.
However, the veteran did complain of dyspnea and fatigue on
exertion, which the examiner found to be credible. There
were no respiratory findings, but the veteran "obviously
smokes." Cardiac exam was normal. An echocardiogram done
one year earlier was normal. However, the examiner felt that
the some exercise testing might be in order to evaluate the
veteran's inability to walk to the mailbox without becoming
tired. In fact, the examiner stated that the veteran may
have cardiopulmonary disease and coronary artery disease in
light of the bruits found. The examiner stated that
currently there was no organism causing illness in the
veteran. The examiner opined that the veteran had an unusual
inflammatory immune response, which was possibly related to
the Lyme disease. Because the veteran's blood tests were
negative, he never developed any evidence of permanent
antibodies to Lyme disease. Therefore, the examiner felt
that the Lyme organism was "aborted by the therapy." The
veteran never developed a positive IgG to Ehrlichia and the
IgM may have been inaccurate. The examiner said that the
veteran undoubtedly does not have Lyme, Ehrlichia, or
mycoplasma presently. The examiner did state that in August
2000 the veteran probably did have some kind of abnormal
immune response to one of these organisms. The examiner
stated that from an infectious disease standpoint the veteran
was treated adequately by Day Kimball Hospital; "the fact
that he had a 12 to 16 day delay in receiving Doxycycline has
had absolutely no effect on a subsequent illness. The
illness no doubt is some idiosyncratic immune response."
The examiner stated that the veteran's history of arthritis
for which he was hospitalized when he was a child may be a
possible clue that he has some immune dysregulation that the
examiner was unable to characterize. In sum, the examiner
stated that the veteran's illness in August 2000 may have
been related to an immunological response to an organism,
although not the usual response that is seen. The illness in
August was not caused by the misdiagnosis of a spider bite.
The veteran was adequately treated and promptly treated at
the private emergency room. The veteran has no
cardiopulmonary sequelae that can be demonstrated on physical
exam. There is no residual of an infectious disease. The
report states that the veteran's medical records were
reviewed.
Legal Criteria
VA provides compensation under the provisions of 38 U.S.C.A.
§ 1151 if VA hospitalization or medical or surgical treatment
results in additional disability or death that is not the
result of the veteran's own willful misconduct or failure to
follow instructions. This compensation is awarded in the
same manner as if the additional disability or death were
service connected. See 38 C.F.R. §§ 3.358(a), 3.800(a)
(2004).
Earlier interpretations of the statute required evidence of
negligence or other fault on the part of VA, or the
occurrence of an accident or an intervening, unforeseen
event, to establish entitlement to section 1151 benefits. 38
C.F.R. § 3.358(c)(3) (1994). Those interpretations and the
cited regulatory provision were invalidated by the U.S. Court
of Appeals for Veterans Claims in the case of Gardner v.
Derwinski, 1 Vet. App. 584 (1991), aff'd sub nom. Gardner v.
Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner,
513 U.S. 115 (1994).
Accordingly, in March 1995, VA published an interim rule
amending 38 C.F.R. § 3.358 to conform to the case law. The
amendment was made effective on November 25, 1991, the date
the initial Gardner decision was issued. 60 Fed. Reg. 14,222
(Mar. 16, 1995). The interim rule was later adopted as a
final rule, 61 Fed. Reg. 25,787 (May 23, 1996) (codified at
38 C.F.R. § 3.358(c)).
Thereafter, Congress amended 38 U.S.C.A. § 1151 to preclude
compensation in the absence of negligence or other fault on
the part of VA or an event not reasonably foreseeable. The
amendment applies to claims filed on or after October 1,
1997. Pub. L. No. 104-204, § 22(a), 110 Stat. 2926 (Sept. 26,
1996); VAOPGCPREC 40-97 (Dec. 31, 1997).
The Secretary of Veterans Affairs issued regulatory
amendments to effectuate section 422(a) of Public Law No.
104-204. 63 Fed. Reg. 45,004 (Aug. 24, 1998). However, those
amendments were subsequently rescinded, as part of a
litigative settlement, and the previous language was
restored. 63 Fed. Reg. 1,131 (Jan. 8, 1999). The Board
notes that new regulations pertaining to disabilities
resulting from VA negligence, which implement the post-
Gardner changes to 38 U.S.C.A. § 1151, went into effect on
September 2, 2004. See 69 Fed. Reg. 46,426 (Aug. 3, 2004).
Thus, for purposes of this section, a disability or death is
a qualifying additional disability if the disability or death
was not the result of the veteran's willful misconduct and
(1) the disability or death was caused by hospital care,
medical or surgical treatment, or examination furnished the
veteran under any law administered by the Secretary and the
proximate cause of the disability or death was either (A)
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the
Department in furnishing the hospital care, medical or
surgical treatment, or examination, or (B) an event not
reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); 38
C.F.R. § 3.358 (2003), 69 Fed. Reg. 46,433-35 (to be codified
at 38 C.F.R. §§ 3.154-3.800).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a
claim on its merits, the evidence must preponderate against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Analysis
The veteran claims that he is entitled to compensation under
the provisions of 38 U.S.C.A. § 1151 for Lyme disease because
when he first went to the VA hospital on June 12, 2000, he
was misdiagnosed as having a spider bite, which led to a
delay in treatment and ultimately complications and residuals
from Lyme disease.
While the veteran did see a VA physician on June 12, 2000,
for a bite the night before, and was instructed to apply warm
to hot applications and return within a week if there was no
improvement, he did not return to the VA until August 2000.
Instead, he went to a private hospital on June 28, 2000, and
was diagnosed with Lyme disease from a deer tick bite.
Subsequently, the veteran was seen at the VA hospital in
August 2000 with multiple complaints. He did not receive any
firm diagnoses. Among the assessments were the following:
rule out meningitis, bacteremia, alcohol dependence,
pericardial effusion without hemodynamic instability,
bilateral infiltrates in the upper left lobes, hepatomegaly
of unknown etiology, and complications associated with Lyme,
Babesiosis and Ehrlichiosis.
The veteran's private physician, Dr. Conrad stated in a May
2003 progress note that it is likely that the veteran's
symptoms (fatigue, asthenia, Raynaud's, and dermatitis) may
be associated with Lyme disease and ehrlichiosis. Dr. Conrad
also said that it is very possible that the veteran's
carditis and what followed "is most likely related to his
Lyme infection." It was noted that myocardial
abnormalities, to include fluctuating degrees of AV block,
first-degree Wenckebach block, and myocarditis, occur in
about eight percent of patients within weeks of infection.
Dr. Conrad stated that the veteran's medical records were
reviewed.
A VA examination was conducted in October 2004. The report
of that exam notes that the veteran has no acute organism
that needs treatment in his body presently. The VA examiner
opined that the veteran's illness in August 2000 may have
been related to an immunological response to an organism,
however, it was not the typical response to such organisms as
the veteran was exposed. The examiner explicitly stated that
the August 2000 illness was not caused by the misdiagnosis by
the VA doctor. Instead, any unusual presentation of Lyme
disease was aborted by antibiotic therapy and there are no
residuals of an infections disease. The examiner stated that
the veteran smokes and may have cardiopulmonary disease,
coronary artery disease and alcoholic liver disease. Because
the veteran had a history of childhood arthritis and
currently has Raynaud's symptoms, the examiner felt that the
veteran might have some immune dysregulation that contributed
to the unusual response from the Lyme disease.
The Board notes that in a March 2005 statement the veteran
contends that Lyme disease, Ehrlichiosis and Septicemia would
have been halted if he had received antibiotics on June 12,
2000, at the VA hospital. He states that suspected
hepatitis, hepatomegaly and immune deficiencies were
dismissed during the early stages of treatment. He further
states that COPD was considered but diagnostic imaging
revealed scarring of the lung walls that was attributed to
repeated pleural effusions and pneumonias that occurred
during the corrective phase of treatment. According to the
October 2004 VA exam report, the veteran's heart and lung
exams were normal; however, the examiner thought that the
veteran might have COPD, coronary artery disease, and
alcoholic liver disease, none of which is related to the Lyme
disease. In fact, the VA examiner opined that the veteran
currently has no residuals of Lyme disease and whatever
residuals he may have had in August 2000, or at any time,
were not due to the misdiagnosis at the VA hospital.
Additionally, the August 19, 2000, infections disease consult
report notes that Lyme, Ehrlichia and Babesia were not
included in the diagnosis. The veteran's private physician,
Dr. Conrad, noted that subsequent to the insect bite, the
veteran developed all the complications that may be
associated with Lyme disease and ehrlichiosis. Dr. Conrad
also stated that it is very possible that the carditis is
related to the veteran's Lyme infection. Importantly,
however, Dr. Conrad did not opine that either these
complications or the veteran's present complaints and/or
symptoms are the result of the misdiagnosis or delayed
diagnosis of Lyme disease.
The only medical opinion of record concerning whether
complications, residuals or further disability from Lyme
disease is the result of treatment (in this case
misdiagnosis) by VA, is the October 2004 VA examination
report. There is no medical evidence supportive of the
veteran's contentions. Accordingly, compensation under the
provisions of 38 U.S.C.A. § 1151 is not warranted.
ORDER
Entitlement to compensation under the provisions of 38
U.S.C.A. § 1151 for Lyme disease as a result of treatment by
VA is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs